Is it unconstitutional to compel non-members to pay an "agency fee" to a labor union? The US Supreme Court will hear oral arguments in Friedrichs v. California Teachers Association on January 11, 2016. The case raises two issues:

(2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

The outcome will determine the financial health of public sector labor unions.

SCOTUSblog recently ran a symposium on the case, and the points made are summarized below.

The Court’s grant in Friedrichs comes at an ideal time to review the public-employee unions’ ability to garnish workers’ paychecks for the inherently political act of collective bargaining for taxpayer-funded wages and benefits.

Unions rely heavily on peer pressure, coercion, and inertia to prevent dissenting members or nonmembers from opposing union political activities.

Public-sector bargaining is an inherently political activity. Therefore, the Court’s attempts to distinguish public-employee union collective bargaining from other types of political and ideological activities have proven illusory.

The interests of public sector unions sit on both sides of the collective-bargaining table. School board members stand for election and depend on the campaign support of their bargaining “adversaries.” Teachers’ unions pour tremendous resources into these elections and their favorites rarely lose.

Sweetheart pension deals cut with public-employee unions have created a financial crisis of Greek proportions.

What justifies forcing employees to pay fees to a union if they object? Labor peace and avoiding free riders.

If a majority of employees votes for union representation, the union represents all of the employees in the bargaining unit. The benefits of any contract negotiated apply to all, even those who oppose the union, and any grievance procedure to enforce the contract is open to all.

This system provides many benefits to employers – one set of negotiations, one contract, and one grievance and arbitration procedure to administer.

Without fair share fees, the union may lack the resources to engage in effective representation, which will eviscerate the entire system.

If the labor relations system that has served well for so long is in need of revision, that task should be left to Congress and the state legislatures.

Friedrichs squarely presents the question wrongly decided in Abood: whether public school teachers can be forced to support union bargaining with a school district.

Harris v. Quinn (2014) suggests that the Court will be receptive to the Friedrichs petitioners’ arguments that there is no relevant difference under the First Amendment between bargaining with government and lobbying government, in that both are petitioning government over matters of political and public concern, and that Abood should be overruled on these grounds.

Harrisalso suggests that the Friedrichs respondents have a difficult path ahead of them, because Harris rejected most union arguments for compulsory fees.

For the respondents in Friedrichs to argue that union collective bargaining with government is merely an internal matter with no political component, and of no public concern, would be to ask the Court to deny the obvious.

In the trial court, the plaintiffs filed suit and promptly requested the court to enter judgment on the pleadings in favor of the defendants, which the court did, finding the matter controlled byAbood and other cases. In the Ninth Circuit the plaintiffs likewise requested and received summary affirmance in favor of the defendants.

The absence of a record will be a problem. In Friedrichs, the trial court did not allow the union to develop a factual record to make the showing Harrisrequires about the costs the union incurs in bargaining on behalf of teachers and in enforcing their rights under collective agreements and the likely extent of the free-rider problem.

The Court cannot rule against the union in Friedrichsfor failing to make a showing that the union specifically tried to make.

Nor can the Court decide the opt-in /opt-out issue without a record because the First Amendment issue turns on factual questions.

Friedrichs will likely mark the end of requirements that dissenting workers take action to “opt out” of funding public-sector unions’ political and ideological activities.

As the Court recounted in Knox, “acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.”

As a practical matter, labor unions have not made it easy for workers to opt out of funding political activities.Workers must go through the process of objecting every single year, opt-out requests are typically permitted only during an annual “objection period,” and unions do the bare minimum required by law to publicize workers’ opt-out rights.

One can certainly understand why labor unions would want to collude with state and local politicians to exact political funds from unwilling employees who may not know how to satisfy convoluted opt-out procedures or are reluctant to bear the burden of doing so.

A major reason states choose to allow public-sector bargaining is to provide a productive and stable channel for workers’ voices, which is much more easily achieved when an elected union has adequate resources.

Agency fees are appropriate when – as in this case – unions are required to fairly represent all workers in the bargaining unit, whether or not they become members; the alternative would permit destabilizing free ridership.

Overturning Abood would set off a wave of contract renegotiations as unions attempt to internalize the costs of free riding. This might involve limiting non-essential union activities that benefit both workers and employers.

Constitutional rights often turn on whether the government is acting as a sovereign or in another capacity, such as employer. Conversely, public-sector workers have much greater First Amendment protection when they are acting as citizens, rather than as employees.

Bargaining is not the same as lobbying. Public employers bargain in their managerial capacities, whereas they receive lobbyists in their sovereign capacities.